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2015 DIGILAW 822 (HP)

Oriental Insurance Company Ltd. v. Vinod Kumar

2015-07-03

MANSOOR AHMAD MIR

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JUDGMENT : Mansoor Ahmad Mir, J. 1. The appellant-insurer has questioned the award dated 31st October, 2007, made by the Motor Accident Claims Tribunal-II, Kangra at Dharamshala, H.P. (hereinafter referred to as “the Tribunal”) in MAC Petition No. 20-D/2005, whereby compensation to the tune of Rs.1,53,012/- with interest at the rate of 7½ % per annum from the date of filing of the claim petition till its realization, came to be awarded in favour of the claimantrespondent No. 1, herein and against the appellant-insurer, herein (for short, the “impugned award”), on the grounds taken in the memo of appeal. 2. The claimant, owner-insured and driver have not questioned the impugned award, on any count. Thus, it has attained finality, so far as it relates to them. 3. Only the appellant-insurer has questioned the impugned award on the ground that the Tribunal has fallen in error in saddling it with liability and the Tribunal has wrongly recorded findings on issue No. 1. 4. It is necessary to give a brief summary of the case, the womb of which has given birth to the present appeal. 5. The claimants being victims of the motor vehicular accident, had invoked the jurisdiction of the Tribunal, in terms of the mandate of Section 166 of the Motor Vehicles Act, 1988, for short “the Act”, for grant of compensation to the tune of Rs.2,50,000/-, as per the break-ups given in the claim petition. It is averred in the claim petition that driver, namely, Vinay Kapoor, had driven the vehicle-Tempo Trax bearing registration No. HP-37-7893, rashly and negligently, on 16.01.2004, at about 10.30 a.m., in Village Sidhwari near liquor vend, Tehsil Dharamsala, District Kangra, H.P., caused the accident, hit Vinod Kumar, as a result of which, he sustained injuries. 6. The respondents contested the claim petition on the grounds taken in their memo of objections. 7. Following issues came to be framed by the Tribunal: “1. Whether the petitioner received injuries in the motor accident on 16.1.2004 at place Sidhbari, caused by rash and negligent driving of the tempo trax bearing No. HP-37-9893 by its driver (Respondent No. 2) as alleged? ….OPP 2. If issue No. 1 is proved, then to what amount of the compensation, the petitioner is entitled and from whom? …OPP 3. Whether the petitioner received injuries in the motor accident on 16.1.2004 at place Sidhbari, caused by rash and negligent driving of the tempo trax bearing No. HP-37-9893 by its driver (Respondent No. 2) as alleged? ….OPP 2. If issue No. 1 is proved, then to what amount of the compensation, the petitioner is entitled and from whom? …OPP 3. Whether the vehicle in question was being plied in violation of the terms and conditions of the insurance policy at the time of accident? If so, its effect? ….OPR-3 4. Relief.” 8. The claimants have led evidence. Owner-insured and driver have also led evidence. The insurer has not led any evidence. 9. The Tribunal after scanning the entire evidence passed the impugned award, whereby the claimant was held entitled to compensation to the tune of Rs.1,53,012/- with interest @7.5% per annum from the date of the claim petition till its realization and the insurer was saddled with liability. 10. I have examined the record and am of the view that the driver has driven the offending vehicle, rashly and negligently, on 16.01.2004, at about 10.30 a.m., in Village Sidhwari near Liquor Vend, Tehsil Dharamsala, District Kangra, H.P. and caused the accident. 11. It is a beaten law of the land that in order to determine the rash and negligent driving in a claim petition, strict pleadings and proof are not required, as held by the Apex Court in a case titled as Dulcina Fernandes and others versus Joaquim Xavier Cruz and another, reported in (2013) 10 Supreme Court Cases 646. It is apt to reproduce relevant portion of paras 8 and 9 of the judgment herein: “8. In United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509 , while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: “10. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. (ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal. *** *** *** (v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation ....... ....... (vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.” 9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case, (2011) 10 SCC 509 , SCC p. 519) “10. …......... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute." 12. In view of the ratio laid down by the Apex Court in the judgment, supra, it is held that the Tribunal has rightly recorded the findings on issue No. 1. Accordingly, the findings recorded by the Tribunal on the said issue are upheld. 13. The Tribunal has made assessment, the details of which are given in paras- 8 & 9 of the impugned award. The findings recorded by the Tribunal are reasonable. The award amount is just and appropriate, cannot be said to be excessive, in any way. 14. Having said so, it is held that there is no merit in the appeal. Accordingly, the same is dismissed and the impugned award is upheld. 15. The Registry is directed to release the awarded amount in favour of the claimant, strictly in terms of the conditions contained in the impugned award, through payees' account cheque. 16. Send down the records after placing a copy of the judgment on the file of the claim petition.